Mentally Impaired Offenders: What's in a name?

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21 Feb 2014 — By Professor Warren Brookbanks

Since the late 1980s, when the Mason Committee released its findings and recommendations in the Psychiatric Report 1988 (the Report), mentally impaired offenders have had a relatively high profile in New Zealand.

Report recommendations

A direct consequence of the Report was the decision by the government of the day to establish a wholly new system of forensic services for the assessment, management and care of mentally impaired offenders, a system which is as sophisticated as any in the Western world.

In particular, the Report recommended that the importance of taha wairua, taha whanau and tikanga Maori be recognised in all assessment and management decisions made in relation to psychiatric patients.

While New Zealand is fortunate to have leading forensic psychiatrists and psychologists, who provide highly effective assessment and care for some of the most dangerous and disturbed people in our community, much work remains to be done in reducing the over-representation of Maori in criminal justice and mental health statistics.

Recent legislation

In more recent years, major legislative change has produced two highly significant outcomes. First, the enactment of the Criminal Procedure (Mentally Impaired Persons) Act 2003 has led to a dramatic increase in the number of cases where the issue of unfitness to stand trial is tested by the courts. In the vast majority of cases offenders are found to be fit to stand trial.

Secondly, the enactment of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 has identified a new cohort of special needs offenders, for whom a novel regime of care and management has been established. Cases involving unfitness to plead and the disposal of offenders with an intellectual disability now dominate forensic mental health services, and far exceed cases involving legal insanity.

What counts as “mental impairment”?

The notion of “mentally impaired” offenders is thus somewhat elusive. The expression encompasses a very wide range of people with highly diverse needs, not all of whom are in need of secure detention.

Although the expression “mentally impaired” is deliberately undefined in legislation in New Zealand, in order to avoid leaving an unintended gap in the legislation, it is taken to include both “mental disorder” (as that expression is defined in mental health legislation) and “intellectual disability” (as defined in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003).

Whether it has a broader meaning than that is debateable, despite the legislature’s apparent intention to ensure that any mental condition which was instrumental in causing a particular crime, and had resulted in unfitness to stand trial, would not be excluded.

However, the peculiarities of the narrow scope of the existing statutory disposal options for mentally impaired offenders may have inadvertently limited the range of aberrant mental conditions mental health and disability professionals are able to deal with in a forensic mental health setting (See R v T CRI 2012-032-2864 [2013] NZHC 2299, 4 September 2013, per Kos J).

Furthermore, there is no necessary overlap between the concept of mental impairment and other concepts which are foundational to our understanding of the role of mental health issues in relation to criminal offending.

Many legally insane offenders may also be mentally impaired, to the extent that the nature and degree of their disabling condition produces the sequelae of mental disorder as defined. But it by no means follows that an offender who is mentally impaired is necessarily legally insane.

Likewise, some offenders who may be categorised as mentally impaired in a general sense, may nevertheless retain sufficient mental capacity to be held legally responsible and amenable to criminal sanctions.

Taking mental impairment into account in court

Mental impairment may, or may not, be a factor courts can take into account in reducing the severity of a sentence. Whether mental impairment does have any mitigatory impact on sanctions imposed by the court will depend on many factors, including the nature and seriousness of the offence(s) committed, the person’s age, whether the condition is likely to respond to treatment and the extent to which therapeutic care is able to protect the public from the risk of further harm.

The sad reality is that while in cases of very severe mental illness the insanity defence may provide a means of diverting an offender from the criminal justice system into therapeutic forensic mental health care, for many offenders their impairment is insufficiently severe to warrant them being absolved from criminal responsibility altogether, yet may be serious enough to cause them acute distress in an unsympathetic prison environment.

New Zealand law has never recognised the sensible “middle ground” of a diminished responsibility defence for offenders charged with homicide who may be severely mentally disturbed, but not legally insane. Such people are required by law to serve lengthy jail terms if they are unsuccessful in persuading the court to order detention subject to a hospital order (see Criminal Procedure (Mentally Impaired Persons) Act 2003, s 34).

Effect on prision populations

Unsurprisingly, the high incidence of mental impairment amongst the prison population is a matter of significant concern for corrections officials, who must manage the needs and challenges of such inmates on a daily basis.

Issues of mental impairment and behavioural dysfunction amongst prisoners are increasingly compounded by emerging evidence of the high incidence of neuropsychological disorders, traumatic brain injury, Fetal Alcohol Syndrome Disorder and substance abuse amongst the prison population. This has the potential to turn prisons into highly psychogenic environments, and breeding grounds for violence, abuse and emotional degradation.

Recent positive initiatives

However, it is not all a picture of gloom and despair. Initiatives in recent years to establish a new generation of problem-solving courts, in particular drug courts, domestic violence courts and dedicated high needs youth justice courts, and in Auckland, a Homeless Court, offer the realistic prospect of breaking patterns of offending and bad decision-making for some offenders.

The hoped-for result is the reintegration of otherwise mentally damaged and dysfunctional persons into society as contributing citizens, with realistic hopes and aspirations. Such courts depend on a high degree of professional motivation and skill, and the ability to look beyond the immediate evidence of antisocial and destructive behaviour to the particular causal factors motivating it.

While mental impairment and dysfunction will never be completely eliminated from amongst the criminal offending population, with appropriate interventions and thoughtfully developed policy its worst effects can be managed and appropriate steps taken for the rehabilitation of those affected and the protection of society.